Commonwealth Transparency v. Malden, City of - Public Schools (SPR 20242137)

The Commonwealth of Massachusetts William Francis Galvin, Secretary of the Commonwealth Public Records Division Manza Arthur Supervisor of Records August 9, 2024 SPR24/2137 Shirley Dorai Records Access Officer Malden Public Schools 110 Pleasant Street Malden, MA 02148 Dear Ms. Dorai: I have received the petition of Commonwealth Transparency (“requestor”) appealing the response of the Malden Public Schools (School) to a request for public records. G. L. c. 66, § 10A; see also 950 C.M.R. 32.08(1). On July 18, 2024, the requestor sought: From the time such records begin, through 7/18/2024, please extract the author and all recipients (To:, Cc:, and/or Bcc:), date (but not the body or attachments) sent or received by any email address in the possession and/or under the control of the City of Malden, including but not limited to the City (@cityofmalden.org), The Schools (@maldenps.org), (thus search all systems), where any address under the control of [a named individual] appears as either/or both the author or recipient (To:, Cc:, and/or Bcc:) AND where any email address of [a named individual] appears as either/or both the author or recipient (To:, Cc:, and/or Bcc:) This requests specifically seeks, the To:, From:, Cc:, and Bcc: address fields, the Date and Time that the message was sent and/or received, and whether there was or was not an attachment. This requests specifically requests that the export be provided in ONLY .CSV or .XLSX form. The School responded on July 26, 2024, citing Exemption (c) of the Public Records Law for redacting responsive records. Unsatisfied with the School’s response, the requestor appealed, and this case, SPR24/2137, was opened as a result. One Ashburton Place, Room 1719, Boston, Massachusetts 02108 • (617) 727-2832 • Fax: (617) 727-5914 sec.state.ma.us/pre • pre@sec.state.ma.us

Shirley Dorai SPR24/2137 Page 2 August 9, 2024 The Public Records Law The Public Records Law strongly favors disclosure by creating a presumption that all governmental records are public records. G. L. c. 66, § 10A(d); 950 C.M.R. 32.03(4). “Public records” is broadly defined to include all documentary materials or data, regardless of physical form or characteristics, made or received by any officer or employee of any agency or municipality of the Commonwealth, unless falling within a statutory exemption. G. L. c. 4, § 7(26). It is the burden of the records custodian to demonstrate the application of an exemption in order to withhold a requested record. G. L. c. 66, § 10(b)(iv); 950 C.M.R. 32.06(3); see also Dist. Att’y for the Norfolk Dist. v. Flatley, 419 Mass. 507, 511 (1995) (custodian has the burden of establishing the applicability of an exemption). To meet the specificity requirement a custodian must not only cite an exemption, but must also state why the exemption applies to the withheld or redacted portion of the responsive record. The School’s July 26th Response In its July 26, 2024 response, the School cites Exemption (c) of the Public Records Law for redacting portions of the records responsive to the request. See G. L. c. 4, § 7(26)(c). Exemption (c) Exemption (c) applies to: personnel and medical files or information and any other materials or data relating to a specifically named individual, the disclosure of which may constitute an unwarranted invasion of personal privacy; provided, however, that this subclause shall not apply to records related to a law enforcement misconduct investigation G. L. c. 4, § 7(26)(c). Analysis under Exemption (c) is subjective in nature and requires a balancing of the public’s right to know against the relevant privacy interests at stake. Torres v. Att’y Gen., 391 Mass. 1, 9 (1984); Att’y Gen. v. Assistant Comm’r of Real Prop. Dep’t, 380 Mass. 623, 625 (1980). Therefore, determinations must be made on a case by case basis. This exemption does not protect all data relating to specifically named individuals. Rather, there are factors to consider when assessing the weight of the privacy interest at stake: (1) whether disclosure would result in personal embarrassment to an individual of normal sensibilities; (2) whether the materials sought contain intimate details of a highly personal nature; and (3) whether the same information is available from other sources. See People for the Ethical Treatment of Animals (PETA) v. Dep’t of Agric. Res., 477 Mass. 280, 292 (2017). When analyzing a privacy claim, there is a balancing test which provides that where the

Shirley Dorai SPR24/2137 Page 3 August 9, 2024 public interest in obtaining the requested information substantially outweighs the seriousness of any invasion of privacy, the private interest in preventing disclosure must yield. PETA, 477 Mass. at 291. The public has a recognized interest in knowing whether public servants are carrying out their duties in a law abiding and efficient manner. Id. at 292. In its July 26, 2024 response, the School states, “several redactions have been made to private email addresses, which are protected from disclosure pursuant to Exemption (c) of the Public Records Law.” Current Appeal In an email to this office on August 6, 2024, the requestor states, “Malden (Both the City and Malden Public Schools) have demonstrated the use of “private” email addresses by public officials….To allow Malden to redact “private” email addresses will allow Malden to secrete and withhold information key to the public’s right to know and observe how our government officials perform their duties, how they expend our dollars and resources and enables a culture where corruption, conflicts of interest and violations of Open Meeting and Public Records law…. MOREOVER, it is the context in which the information appears that is important to the analysis, that is- a member of the public, identified by name and email address, communicating with a Malden employee about public business., where [there] is no expectation of privacy.” Based on issues raised in the requestor’s email, it is unclear if the redacted private email addresses were used by public officials in their official capacity to conduct School business. The School must clarify this matter. Conclusion Accordingly, the School is ordered to provide the requestor with a response to the request, provided in a manner consistent with this order, the Public Records Law, and its Regulations within ten business days. A copy of any such response must be provided to this office. It is preferable to send an electronic copy of the response to this office at pre@sec.state.ma.us. Sincerely, Manza Arthur Supervisor of Records cc: Commonwealth Transparency